Bias in the Jury Box

When the framers of the Bill of Rights guaranteed every U.S. defendant the right to an "impartial jury," they underscored a truism of human affairs--that a people's respect for law depends largely on the law's respect for them. It is an equal truism of U.S. life that nearly all black defendants are tried by white juries, a fact that fuels black suspicion of "white law."

Racial discrimination in the jury box has grown far more subtle since the 1870s, when many state laws openly barred blacks as jurors. The Supreme Court has consistently struck down unfair statutes and practices. But the court has insisted only that black defendants have a right to a fair chance that blacks be on the jury, and the right is seldom fulfilled in practice: most juries are permitted to remain white. In the 1965 case of Swain v. Alabama, for example, the court upheld the conviction of a black rape suspect, even though peremptory challenges had excluded all blacks from the jury and no black juror had served in the county for 15 years.

Vanishing Neighbors. The assumption is that most jurors can reach a fair verdict, regardless of their race, ethnic background or economic circumstance. Yet Southern white juries have repeatedly acquitted the obvious white killers of civil rights workers. Blacks feel that Northern white juries have railroaded various black militants.

Critics point out that juries were originally composed of actual witnesses to the crime, and later of the defendants neighbors. The defendant, in short, was entitled to the benefit of his community's feelings and familiarity with the social context of his actions. Whatever the verdict, it could be viewed as a fair product of a democratic process.

In theory, the U.S. retains this principle. Yet jurors in general are no longer neighbors in the old sense. In urban areas, they are drawn from citizens who seldom understand the pressures on minorities. Many states further narrow the jury base by excusing women and many professionals. Most blacks are barred in the drawing process or later by lawyers' peremptory challenges.

In its most recent decision on jury selection two months ago, the Supreme Court upheld a Georgia statute that empowers jury commissioners to choose veniremen from "intelligent and upright citizens of the county." The phrase can be variously interpreted. Of 2,152 names on the voting list in Taliaferro County, 178 were excluded on this basis--171 of them blacks. The county is 60% black; the grand jury was 25% black. Yet the court found the statute's standards acceptable, demanding only that they be applied objectively and without discrimination.

Some of the deficiencies in the federal system have been corrected by the Federal Jury Selection Act of 1968, which reaffirms a national policy entitling defendants to juries that reflect the full range of community opinion. The law requires veniremen to be chosen primarily from voter registration lists--which seems reasonable enough, but tends to exclude many blacks, especially in the South. Nor does the federal act touch state laws.

Royal-Flush Odds. Even random selection techniques fail when the lists are unfairly drawn to begin with. In a recent New York case, for example, Attorney Michael Finkelstein produced evidence showing that a federal grand jury list included only 1.1 of every 10,000 voters in Harlem, compared with 62.6 of every 10,000 voters from the city's fashionable and predominantly white East Side. A statistician testified that the chances of obtaining that disparity in a random selection were smaller than the probability of a poker player being dealt 24 consecutive royal flushes in a fair game of five-card stud.

One result of all this is that blacks across the U.S. are far more likely to be convicted in crimes against whites than are whites in crimes against blacks. In the South, despite the fact that more than half of all convicted rapists are white, 87% of those executed for rape between 1930 and 1963 were black. Southern white juries also tend to be lenient toward black crimes against blacks. During an eleven-year period in North Carolina, for example, 26.6% of all blacks accused of killing whites were executed. Of the blacks convicted of murdering blacks, only 4% were executed.

Most proposed solutions for getting more blacks on juries seem to raise more problems. Proportional representation, besides limiting the lawyers' rights to peremptory challenges, might yield only one black per jury, plus absurd demands that juries precisely reflect all other groups--Jews, Chinese, Indians, Catholics and so on. Some reformers urge another method: racial quotas. They might be held unconstitutional if applied to jury selection, and almost certainly would be unwise. White jury commissioners could still control the system, and perhaps select only compliant or ultraconservative blacks. They might be harsher on black defendants than white jurors would be.

A recent article in the Yale Law Journal suggests that federal juries in civil cases be drawn from the community where the cause of action arose, and in criminal cases where the crime occurred. In this way, most blacks would be judged by substantially black juries. At the same time, a black who committed a crime in a white area would get a substantially white jury (and vice versa). If and when integration occurred, all juries would reflect that too.

Whether this plan is both wise and workable remains to be seen. Whatever the answers, it is clearly important to get more blacks on juries because, as the N.A.A.C.P. Legal Defense Fund's Michael Meltsner puts it, "the confidence of the black community in the judicial process is critical to the survival of the whole society."

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